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New Rules Would Limit TCPA Exception, FCC Says

Responding to concerns expressed by federal lawmakers and state Attorneys General about changes to the Telephone Consumer Protection Act that permits robocalls to individuals who owe a debt to the federal government, Federal Communications Commission Chair Tom Wheeler wrote to discuss the limits the Commission is proposing on such calls.

Section 301 of the Bipartisan Budget Act of 2015 included a provision creating an exception to the TCPA's prior express consent requirement for automated calls to cellular or residential telephones if the purpose of the calls is to collect debts owed to, or guaranteed by, the United States government.

Importantly, the provision also requires the FCC to issue regulations implementing the change. Both legislators and state AGs raised five issues of particular concern: whether calls can be made pursuant to Section 301 prior to the FCC issuing implementing regulations; whether covered calls should be allowed only to the debtor and not others (such as family members); what limits should be placed on covered calls to telephone numbers reassigned from a debtor to another person; whether there should be limits on the number and duration of automated calls without consent; and whether callers must stop calling upon a recipient's request.

Wheeler responded with his own missive, describing a draft Notice of Proposed Rulemaking currently circulating among the Commission. "The draft NPRM includes clear, pro-consumer restrictions on the type and number of calls a federal creditor may place to recover a delinquent debt, even when those calls go unanswered," the Chair wrote.

Specifically, the NPRM proposes "that only calls made after a debtor has become delinquent are covered by the exception" and "that these robocalls can only be made to the debtor, so as to prevent unwanted robocalls to relatives, friends, and other acquaintances of debtors."

In addition, Wheeler said the proposal would limit the calls to creditors and those calling on their behalf, including debt servicers, with a cap of three calls per month per delinquency. Consumers would have the ability to stop calls from the creditor "at any time" and callers would be required to inform debtors of this right.

"The draft NPRM also makes clear that the new rules will not open a door for telemarketing calls," Wheeler wrote. "The Commission remains steadfast in its defense of protections against unwanted calls. Congress specified that exempted calls must be 'solely' to collect a federal debt, and we will ensure they do not go beyond that boundary."

He noted that the FCC "worked closely" with the staff of the Consumer Financial Protection Bureau in drafting the NPRM and consulted with other federal stakeholders, including the Department of the Treasury and Department of Education.

Why it matters: Although the FCC has not yet released the draft NPRM, the agency is working on a tight timeline. The Commission was given nine months from the enactment of the Bipartisan Budget Act to issue implementing regulations, giving the agency a deadline of August 2 to complete and adopt new rules.

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